CSM before the Constitutional Court: Formality or buying time?

Ustavni sud-ZSO-Savet Evrope
Source: Kosovo Online

If the terms for the Kosovo variant of the association game were: Council of Europe, 11 years, Brussels Agreement, and Serbs, would the final solution be the Association/Community of Serb-majority Municipalities (CSM) or the Constitutional Court? It all depends on the observer's perspective, whether viewed from Belgrade or Pristina, from the Western Balkans or the EU.

The Parliamentary Assembly of the Council of Europe recommended this week, with its votes, to the Committee of Ministers of the CoE to vote for Kosovo's admission to this organization in May.

The PACE accepted the report of special rapporteur Doris Pack, who justified Kosovo's membership by returning property to the Visoki Decani Monastery, although she previously insisted on three key conditions, the most important of which was the formation of the CSM.

Referring to diplomatic sources, Albanianpost revealed that the agreement between the Government of Kosovo and the international community was that before the vote in PACE and by May 10, when the CoE Committee of Ministers is to convene, the Draft Statute of the Association/Community of Serb-majority Municipalities should be submitted to the Constitutional Court for consideration.

Is it a formality or a new buying of time so that this institution is not formed even after 11 years? And again, it's all in the eye of the observer. It is seen entirely differently from Belgrade and entirely differently from Pristina, from the Western Balkans and from the EU.

Researcher at the Center for European Policy, Milos Pavkovic, told Kosovo Online that Pristina is tactically handling the formation of the CSM and that by sending the Draft Statute to the Constitutional Court, the "ball will be in the court of the judges" who can decide on it for months or even years.

"This is in a way the Kosovo government's tactic and balancing act between the desire to join the Council of Europe and not to form the CSM," Pavkovic said.

He explains that sending the Draft Statute of the CSM is part of the obligation that Kosovo's leaders accepted in exchange for Kosovo's membership in the Council of Europe.

"The Kosovo government wants to send a message that with this act - initiating proceedings before the Constitutional Court - the formal process of forming the CSM begins. This is an obligation that President Vjosa Osmani, Prime Minister Albin Kurti, and Assembly President Glauk Konjufca committed to in a letter they sent to the Council of Europe. In that way, it is linked to Kosovo's membership in the Council of Europe," Pavkovic said.

He adds that if the Draft Statute of the CSM is submitted to the Constitutional Court, then the "ball" will be in the court of the constitutional judges.

"If the Constitutional Court decides that the proposed draft is in line with the Constitution, then there will be no obstacles, no excuses for the Government of Kosovo to postpone implementation, and this will be an opportunity for Western partners to exert greater pressure on Kosovo. However, if the Constitutional Court reaches the opposite decision, namely, that the draft is not in line with the Constitution, then it will cause years of delay in the formation of the CSM because the whole process of drafting the Statute will have to start over," Pavkovic believes.

He does not rule out the possibility that by sending the Draft Statute of the CSM to the Constitutional Court, Pristina could also be buying time.

"This could mean buying time for the Government of Kosovo because the decision of the Constitutional Court may take a long time. The government sends a message that they have formally initiated the process, but now they are waiting for the decision of the constitutional court, which can take months, if not years. It is indeed buying time because we know that the stance of the Government of Kosovo is very contrary to what was agreed in the agreements of 2013 and 2015 regarding the formation of the Association/Community of Serb-majority Municipalities," Pavkovic emphasizes.

For Dragiša Mijacic, the coordinator of the National Convention for Chapter 35, this is an oxymoron - a special kind of antithesis, or paradox in which the merging of contradictory concepts creates a new term, i.e., a new picture.

"It will not be so easy for the Government of Kosovo to submit the opinion on the Draft Statute of the CSM to the Constitutional Court because the Constitutional Court is not a constitutive mechanism. For the government to submit such a document, it first needs to adopt it, and then, as an international legal obligation, send it to the Constitutional Court for consideration. If it happens that the government submits such a document without having previously adopted it, the Constitutional Court will reject it according to its acts, and I am not sure that the Government of Kosovo will adopt the draft Statute of the CSM by May 10. This is an oxymoron that primarily aims to appease the international public and stakeholders to ensure a positive vote in the Committee of Ministers of the CoE, but whether it will actually happen, we do not know, and I would not assume that it will be so," Mijacic explains.

He emphasizes that there is a clear sequence of steps that need to be taken to establish the Association/Community of Serb-majority Municipalities (CSM), and that skipping any of these intermediate steps will lead to failure and provide another argument that the document is not in line with the Constitution and legislation.

Mijacic says that the first step in this process is for the Government of Kosovo to accept the draft agreement that has been on the table for a long time and to submit it to the Assembly for consideration, and only after that can the document be sent to the Constitutional Court.

"Skipping these intermediate steps will lead to failure in adopting this Statute and will give the Kosovo government another argument that the document is not in line with the Constitution and the legislative framework of Kosovo, and therefore should not be adopted. This is primarily the game played by the Government of Kosovo to appease the international public regarding the vote in the Committee of Ministers of the Council of Europe," says Mijacic.

He adds that Kosovo will not be able to escape its international obligation to establish the CSM, but it is up to the ministers of the member countries of the Council of Europe whether this will be a condition for admission to this organization on May 10.

"If the Government of Kosovo wants to implement the Association/Community of Serb-majority Municipalities, which is their international legal obligation, they must adopt the Statute proposed by the European Union. This certainly will not happen in the short term, but there will be clear international pressure for it to happen. Whether this will be conditioned by Kosovo's membership in the Council of Europe or not will be decided by the ministers of the member countries of the Council of Europe, but the Kosovo government will certainly not be able to evade this obligation it has accepted," Mijacic concludes.

Former President of the Constitutional Court of Kosovo and professor of international law Enver Hasani says that the Association/Community is not a condition for Kosovo's membership in the Council of Europe, but he expects it to happen after the vote of the Committee of Ministers of the Council of Europe because Kosovo unilaterally assumed that obligation signed by Kurti, Osmani, and Konjufca.

"Legally, the Association/Community is an obligation of Kosovo that will be fulfilled after Kosovo's accession to the Council of Europe. This can happen earlier, but I repeat, it is the political will of Kosovo," says Hasani.

In an interview for Kosovo Online, Hasani emphasized that the Constitutional Court of Kosovo can make some corrections to the draft Statute of the CSM when the Kosovo government submits the draft for consideration to that judicial body, but he does not believe that they will annul the entire draft.

"I am sure that the Constitutional Court will make some corrections, but I highly doubt that they will annul the draft Statute of the Association/Community. We also have a judgment of the Constitutional Court from 2015 that confirms that this entity should be formed," Hasani is convinced.

Hasani emphasizes that once the draft Statute is submitted to the Constitutional Court, that obligation is fulfilled. He is confident that the Constitutional Court will make some corrections, but he highly doubts that they will annul the entire draft of the CSM Statute. He refers to a judgment of the Constitutional Court from 2015 that confirms the need for the formation of that entity.

On the other hand, Duško Celic, an assistant professor at the Faculty of Law, University of Kosovska Mitrovica, says that Pristina has been bargaining with the formation of the CSM from the beginning, and the eventual submission of the draft Statute to the Constitutional Court will only continue the political game of Albin Kurti, where he will wait for elections and then further "water down and render meaningless" the existence of this institution.

"I don't expect the Constitutional Court to issue a prompt decision on this matter. I don't believe they will rush. I assume they will wait for the general elections in Kosovo. I don't believe Kurti will enter a new election cycle with any kind of CSM Statute. I simply don't believe it can be expected unless there is a turnaround in the opinions of their Western political mentors," says Celic.

He adds that the assessment of constitutionality will essentially be both a time-buying tactic and an attempt to further dilute and render meaningless the powers of the CSM.

"We can only assume that this is once again a political game of Albin Kurti and the authorities in Pristina. It may be done, but I don't believe the Constitutional Court will decide on it relatively quickly. It is probably just a formal step since Pristina does not accept any form of CSM, even a version that would be completely meaningless. Over the past year, Pristina has done everything to render the CSM meaningless, which objectively did not have any significant powers according to those original proposals," says Celic.

He also notes another significant issue, which is that nobody knows which draft of the CSM will be submitted to the Constitutional Court.

"According to the Brussels agreements on the Community/Association of Serb-majority Municipalities, and let me remind you, there were three of them, the only body authorized to draft that statute was the so-called Management Team, and the Management Team did so. But suddenly, that draft proposal was removed, and there is mention of some European draft proposal for the Statute. And now it is probably thought that this European draft proposal for the Statute should be submitted to the Constitutional Court for consideration," says Celic.
Celic is pessimistic when asked if he expects an unexpected decision from the Constitutional Court of Kosovo.

"I assume that there will be a diluted version of the draft Statute proposed by the European Union, or rather Lajcak as the mediator of the Brussels dialogue, and that at some point, if it reaches the decision-making phase, their Constitutional Court will further dilute that matter. I don't have high expectations for any future CSM community. I don't believe it will have any significant powers. It will more likely be, at best, a shell without substance," emphasizes Celic.

Reminding that the Constitutional Court rejected the proposed draft of the CSM in 2015, Celic does not rule out the possibility that the decision will be different now.

"In return, Kosovo will be rewarded with membership in the Council of Europe, and unfortunately, I do not exclude other concessions to Kosovo that could be made for the formal acceptance of the CSM. But, I repeat, from everything we see now, the CSM will not have any significant powers to protect any collective rights of the Serbian people in Kosovo and Metohija," says Celic.